Cheryl M. Fealy v. Wells Fargo Bank, Na

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERYL M. FEALY,
Plaintiff-Appellant,
v.
WELLS FARGO BANK, NA,
Defendant-Appellee.
No. 14-16972
D.C. No. 2:13-cv-02340-APG-
PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Cheryl M. Fealy appeals pro se from the district court’s summary judgment
in her action alleging federal and state law claims arising from Wells Fargo’s
turnover of money from Fealy’s bank account to the Internal Revenue Service
(“IRS”) pursuant to a notice of levy. We have jurisdiction under 28 U.S.C. § 1291.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 14-16972
We review de novo. Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th
Cir. 2004). We affirm.
The district court properly granted summary judgment because Wells
Fargo’s compliance with the IRS notice of levy immunized it from suit. See 26
U.S.C. § 6332(a), (e); see also Stead v. United States, 419 F.3d 944, 947 (9th Cir.
2005) (stating that a third party has only two defenses for not turning over levied
funds to the IRS). Contrary to Fealy’s contention, the district court did not err in
granting summary judgment for Wells Fargo notwithstanding Wells Fargo’s failure
to file a separate motion for summary judgment. See Fed. R. Civ. P. 56(f).
The district court did not abuse its discretion by setting aside the entry of
default against Wells Fargo. See O’Connor v. Nevada, 27 F.3d 357, 364 (9th Cir.
1994) (setting forth standard of review).
We do not consider arguments that were not presented to the district court.
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.

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